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Supreme Court Limits President Obama’s Appointment Powers

“The Senate is in session when it says that it is.”

The United States Supreme Court announced a ruling in the case Hall v. Florida, finding that the state had adopted too rigid a cutoff in deciding who is eligible to be spared the death penalty because of intellectual disabilities, May 27, 2014 in Washington, DC.

In a un­an­im­ous de­cision, the Su­preme Court on Thursday lim­ited the pres­id­ent’s power to make re­cess ap­point­ments for va­can­cies in the ex­ec­ut­ive branch. The case, Na­tion­al Labor Re­la­tions Board v. Noel Can­ning et al., spe­cific­ally re­lated to three ap­point­ments Obama made in 2012 to the NLRB while the Sen­ate was in pro forma ses­sions, con­ven­ing every three days. As the Court sees it, for the Sen­ate to truly be in re­cess, it would have to be out for at least 10 days.

The ma­jor­ity opin­ion in the case was writ­ten by Justice Steph­en Brey­er, which was joined by Justices An­thony Kennedy, Ruth Bader Gins­burg, So­nia So­to­may­or, and Elena Kagan. A con­cur­ring opin­ion writ­ten by Ant­on­in Scalia was joined by Chief Justice John Roberts and Justices Clar­ence Thomas and Samuel Alito.

The Court’s sum­mary states (em­phas­is ours) “The Re­cess Ap­point­ments Clause em­powers the Pres­id­ent to fill ex­ist­ing va­cancy dur­ing any re­cess — in­tra-ses­sion or inter-ses­sion — of suf­fi­cient length.” But the ques­tion here is wheth­er the Sen­ate was ac­tu­ally in re­cess. “A Sen­ate re­cess that is so short that it does not re­quire the con­sent of the House un­der that Clause is not long enough to trig­ger the Pres­id­ent’s re­cess-ap­point­ment power.”

As the Court holds, the pro forma ses­sions like the one Obama used to ap­point the NLRB mem­bers are full ses­sions, as long as that’s what the Sen­ate says. Or, as the Court puts it, “the Sen­ate is in ses­sion when it says that it is.”

As Tom Gold­stein writes at SCOTUS­b­log, the de­cision sig­ni­fic­antly lim­its pres­id­en­tial power. While the pres­id­ent can still make re­cess ap­point­ments without Sen­ate con­firm­a­tion when the Sen­ate says it’s in re­cess, the House or Sen­ate “can take the Sen­ate out of re­cess and force it to hold a ‘pro forma ses­sion’ that will block any re­cess ap­point­ment.” Which means, the party in power of the House or Sen­ate will be able to block re­cess ap­point­ments eas­ily.

There is a lot in the bal­ance here, from what the de­cision means for NLRB de­cisions since the ap­point­ments were made to what it means for the NLRB it­self. And in his opin­ion, Brey­er made it clear that he knows the stakes.

“We have not pre­vi­ously in­ter­preted the Clause,” Brey­er writes, re­fer­ring to the Re­cess Ap­point­ments Clause in Art­icle II of the Con­sti­tu­tion, “and when do­ing so for the first time in more than 200 years, we must hes­it­ate to up­set the com­prom­ises and work­ing ar­range­ments that the elec­ted branches of Gov­ern­ment them­selves have reached.”

In case you’re won­der­ing, here’s that clause in full:

The Pres­id­ent shall have Power to fill up all Va­can­cies that may hap­pen dur­ing the Re­cess of the Sen­ate, by grant­ing Com­mis­sions which shall ex­pire at the End of their next Ses­sion.

In the view of the Court, as writ­ten by Brey­er, “pro forma ses­sions count as ses­sions, not as peri­ods of re­cess. We hold that, for pur­poses of the Re­cess Ap­point­ments Clause, the Sen­ate is in ses­sion when it says it is, provided that, un­der its own rules, it re­tains the ca­pa­city to trans­act Sen­ate busi­ness. The Sen­ate met that stand­ard here.”

In his con­cur­rence (which was joined by Roberts, Thomas, and Alito), Scalia makes the case that the Court’s opin­ion was too nar­row. Rather than al­low pres­id­ents to make ap­point­ments dur­ing breaks 10 days or longer, Scalia, and the Court con­ser­vat­ives who joined his opin­ion, hold that a “re­cess” is just the peri­od between two ses­sions of Con­gress.

I would hold that “the Re­cess” is the gap between ses­sions and that the ap­point­ments at is­sue here are in­val­id be­cause they un­dis­putedly were made dur­ing the Sen­ate’s ses­sion. The Court’s con­trary con­clu­sion — that “the Re­cess” in­cludes “breaks in the midst of a ses­sion,” ante, at 9 — is in­con­sist­ent with the Con­sti­tu­tion’s text and struc­ture, and it re­quires ju­di­cial fab­ric­a­tion of vague, un­ad­min­is­trable lim­its on the re­cess-ap­point­ment power (thus defined) that over­step the ju­di­cial role.

Scalia and his con­ser­vat­ive col­leagues hold that a “re­cess” is just the peri­od between two ses­sions of Con­gress, not something that’s just a 10-day break or longer. They take is­sue with a “col­lo­qui­al” defin­i­tion of “re­cess” that’s used in cases that, as they see it, are really just ad­journ­ments dur­ing a ses­sion. Us­ing “re­cess” dur­ing these times “leaves the re­cess-ap­point­ment power without a tex­tu­ally groun­ded prin­ciple lim­it­ing the time of its ex­er­cise,” Scalia writes.

Scalia writes that the Court’s de­cision risks trans­form­ing “the re­cess-ap­point­ment power from a tool care­fully de­signed to fill a nar­row and spe­cif­ic need in­to a weapon to be wiel­ded by fu­ture Pres­id­ents against fu­ture Sen­ates.”

Brey­er strongly dis­agreed, con­sid­er­ing the his­tory of re­cess ap­point­ments gran­ted dur­ing a broad­er range of Sen­ate re­cesses. “Justice Scalia would render il­le­git­im­ate thou­sands of re­cess ap­point­ments reach­ing all the way back to the found­ing era,” Brey­er wrote. “More than that: Call­ing the Clause an ‘ana­chron­ism,’ he would ba­sic­ally read it out of the Con­sti­tu­tion. He per­forms this act of ju­di­cial ex­cision in the name of liberty.”

Sen­ate Minor­ity Lead­er Mitch Mc­Con­nell was pre­dict­ably pleased with the Court’s de­cision. “The ad­min­is­tra­tion has a tend­ency to abide by laws that it likes and to dis­reg­ard those it doesn’t,” he said. “I was proud to lead the ef­fort to de­fend the Sen­ate against the pres­id­ent’s un­pre­ced­en­ted power grab.”

But as Scalia writes, re­cess ap­point­ments aren’t just an Obama thing:

The So­li­cit­or Gen­er­al has iden­ti­fied 22 such ap­point­ments made by Pres­id­ents Hard­ing, Coolidge, Hoover, and Frank­lin Roosevelt be­tween 1921 and 1944…. In­tra-ses­sion re­cess ap­point­ments ex­per­i­enced a brief hey­day after World War II, with Pres­id­ent Tru­man mak­ing about 150 such ap­point­ments to ci­vil­ian po­s­i­tions and sev­er­al thou­sand to mil­it­ary posts from 1945 through 1950…. Pres­id­ent Eis­en­hower made only 43 in­tra-ses­sion re­cess ap­point­ments … after which the prac­tice sank back in­to re­l­at­ive ob­scur­ity. Pres­id­ents Kennedy, Lyn­don John­son, and Ford made none, while Nix­on made just 7…. The prac­tice rose again in the last dec­ades of the 20th cen­tury: Pres­id­ent Carter made 17 in­tra-ses­sion re­cess ap­point­ments, Re­agan 72, George H. W. Bush 37, Clin­ton 53, and George W. Bush 135…. When the So­li­cit­or Gen­er­al filed his brief, Pres­id­ent Obama had made 26…. Even ex­clud­ing Tru­man’s mil­it­ary ap­point­ments, roughly 90 per­cent of all the in­tra-ses­sion re­cess ap­point­ments in our his­tory have been made since 1945.

In a state­ment about the de­cision, Sen­ate Ma­jor­ity Lead­er Harry Re­id said the opin­ion makes his re­cent changes to the Sen­ate’s rules around ex­ec­ut­ive nom­in­ees vi­tal. “Without that re­form and with today’s rul­ing, a small but vo­cal minor­ity would have more power than ever to block qual­i­fied nom­in­ees from get­ting a simple up-or-down vote on the floor.”